State may be sued in another state court

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I would reverse the judgment of the California Court of Appeal, and remit the plaintiffs-respondents to those remedies prescribed by the statutes of Nevada.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting[.]

Like my Brother BLACKMUN, I cannot agree with the majority that there is no constitutional source for the sovereign immunity asserted in this case by the State of Nevada. I think the Court's decision today works a fundamental readjustment of interstate relationships which is impossible to [440 U.S. 410, 433]   reconcile not only with an "assumption" this and other courts have entertained for almost 200 years, but also with express holdings of this Court and the logic of the constitutional plan itself.

Any document - particularly a constitution - is built on certain postulates or assumptions; it draws on shared experience and common understanding. On a certain level, that observation is obvious. Concepts such as "State" and "Bill of Attainder" are not defined in the Constitution and demand external referents. But on a more subtle plane, when the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan - the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because without them the Constitution is denied force and often meaning. 1 Thus, in McCulloch v. Maryland, 4 Wheat. 316 (1819), Mr. Chief Justice Marshall, writing for the Court, invalidated a state tax on a federal instrumentality even though no express provision for intergovernmental tax immunity can be found in [440 U.S. 410, 434]   the Constitution. He relied on the notion that the power to tax is the power to destroy, and that to concede the States such a power would place at their mercy the Constitution's affirmative grants of authority to the Federal Government - a result the Framers could not have intended. More recently this Court invalidated a federal minimum wage for state employees on the ground that it threatened the States' "`ability to function effectively in a federal system.'" National League of Cities v. Usery, 426 U.S. 833, 852 (1976), quoting Fry v. United States, 421 U.S. 542, 547 n. 7 (1975). The Court's literalism, therefore, cannot be dispositive here, and we must examine further the understanding of the Framers and the consequent doctrinal evolution of concepts of state sovereignty.

Article III, like virtually every other Article of the Constitution, was inspired by the experience under the Articles of Confederation. To speak of the "judicial Power" of the United States under the Articles of Confederation is to invite charges of pretense, for there was very little latitude for federal resolution of disputes. The Confederation Congress could create prize courts and courts for the adjudication of "high seas" crimes. It could set up ad hoc and essentially powerless tribunals to consider controversies between States and between individuals who claimed lands under the grants of different States. 2 But with respect to all other disputes of interstate or international significance, the litigants were left to the state courts and to the provincialism that proved the bane of this country's earliest attempt at political organization.

One obvious attribute of Art. III in light of the Confederation experience was the potential for a system of neutral forums for the settlement of disputes between States and citizens of different States. The theme recurs throughout the [440 U.S. 410, 435]   ratification debates. For example, during the debates in North Carolina, William Davie, a member of the Constitutional Convention, observed:

"It has been equally ceded, by the strongest opposers to this government, that the federal courts should have cognizance of controversies between two or more states, between a state and the citizens of another state, and between the citizens of the same state claiming lands under the grant of different states. Its jurisdiction in these cases is necessary to secure impartiality in decisions, and preserve tranquility among the states. It is impossible that there should be impartiality when a party affected is to be judge.

"The security of impartiality is the principal reason for giving up the ultimate decision of controversies between citizens of different states." 4 J. Elliot, Debates on the Federal Constitution 159 (1876) (hereinafter Elliot's Debates).

As the Court observes, the matter of sovereign immunity was indeed a subject of great importance in the early days of the Republic. In fact, it received considerable attention in the years immediately preceding the Constitutional Convention. In 1781 a citizen of Pennsylvania brought suit in the Pennsylvania courts in an effort to attach property belonging to Virginia that was located in Philadelphia Harbor. The case raised such concerns throughout the States that the Virginia delegation to the Confederation Congress sought the suppression of the attachment order. The Pennsylvania Court of Common Pleas ultimately held that by virtue of its sovereign immunity, Virginia was immune from the processes of Pennsylvania. Nathan v. Virginia, 1 Dall. 77 (1781).

That experience undoubtedly left an impression - particularly on Virginians - and throughout the debates on the Constitution fears were expressed that extending the judicial power of the United States to controversies "between a state [440 U.S. 410, 436]   and citizens of another state" would abrogate the States' sovereign immunity. James Madison and John Marshall repeatedly assured opponents of the Constitution, such as Patrick Henry, that the sovereign immunity of the States was secure. 3 Alexander Hamilton as Publius wrote:

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal." The Federalist No. 81, p. 508 (H. Lodge ed. 1908) (emphasis in original).

In Chisholm v. Georgia, 2 Dall. 419 (1793), this Court [440 U.S. 410, 437]   disagreed with the Madison-Marshall-Hamilton triumvirate, and its judgment was in turn overruled by the Eleventh Amendment. 4 By its terms that Amendment only deprives federal courts of jurisdiction where a State is haled into court by citizens of another State or of a foreign country. Yet it is equally clear that the States that ratified the Eleventh Amendment thought that they were putting an end to the possibility of individual States as unconsenting defendants in foreign jurisdictions, for, as MR. JUSTICE BLACKMUN notes, they would have otherwise perversely foreclosed the neutral federal forums only to be left to defend suits in the courts of other States. The Eleventh Amendment is thus built on the postulate that States are not, absent their consent, amenable to suit in the courts of sister States.

This I think explains why this Court on a number of occasions has indicated that unconsenting States are not subject to the jurisdiction of the courts of other States. In Beers v. Arkansas, 20 How. 527, 529 (1858), Mr. Chief Justice Taney observed in an opinion for the Court that it "is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission." Some 25 years later Mr. Justice Miller, again for the Court, was even more explicit:

"It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution.

"This principle is conceded in all the cases, and whenever it can be clearly seen that the State is an indispensible [440 U.S. 410, 438]   party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction." Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 451 (1883).

The most recent statement by this Court on the topic appears to be that authored by Mr. Justice Black in Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71 (1961), which held that Western Union's due process rights would be violated if Pennsylvania escheated Western Union's unclaimed money orders. The Court found that conclusion compelled by Pennsylvania's inability to provide Western Union with a forum where all claims, including those of other States, could be resolved. The Court noted that "[i]t is plain that Pennsylvania courts, with no power to bring other States before them, cannot give such hearings." Id., at 80.

When the State's constitutional right to sovereign immunity has been described, it has been in expansive terms. In Great Northern Insurance Co. v. Read, 322 U.S. 47, 51 (1944), the Court stated:

"Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution. . . . A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment." (Emphasis added.)

Although Mr. Justice Frankfurter disagreed with the Great Northern Insurance Co. majority on the issue of consent, he was in complete agreement on the broad nature of the right.

"The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court - the State's or that of the United States - except with its consent." Id., at 59 (dissenting opinion). [440 U.S. 410, 439]  

Presumably the Court today dismisses all of this as dicta. Yet these statements - far better than the Court's literalism - comport with the general approach to sovereign-immunity questions evinced in this Court's prior cases. Those cases have consistently recognized that Art. III and the Eleventh Amendment are built on important concepts of sovereignty that do not find expression in the literal terms of those provisions, but which are of constitutional dimension because their derogation would undermine the logic of the constitutional scheme. In Hans v. Louisiana, 134 U.S. 1 (1890), the Eleventh Amendment was found to bar federal-court suits against a State brought by its own citizens, despite the lack of any reference to such suits in the Amendment itself. The Court found this limit on the judicial power in the "established order of things" - an order that eschewed the "anomalous result, that in cases arising under the Constitution or laws of the United States, a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign state; and may be thus sued in the federal courts, although not allowing itself to be sued in its own courts." Id., at 10, 14. The anomaly lay in the availability of the neutral forum in cases where there was some political check on parochialism - suits against a State by its own citizens - and its unavailability in situations where concerns of a biased tribunal were most acute - suits against a State by citizens of another State. The Hans Court, speaking through Mr. Justice Bradley, concluded:

"It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. . . . It is enough for us to declare its existence. The legislative department of a State represents its polity and its will; and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to [440 U.S. 410, 440]   hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power of judging what the honor and safety of the State may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure can cause." Id., at 21.

Similarly, in Monaco v. Mississippi, 292 U.S. 313 (1934), this Court relied on precepts underlying but not explicit in Art. III and the Eleventh Amendment to conclude that this Court was without jurisdiction to entertain a suit brought by the Principality of Monaco against the State of Mississippi for payment on bonds issued by the State. On its face, Art. III would suggest that such a suit could be entertained, and such actions are not addressed by the terms of the Eleventh Amendment. But Mr. Chief Justice Hughes in Monaco did not so limit his analysis, and held that the Court could not entertain the suit without Mississippi's consent.

"Manifestly, we cannot rest with a mere literal application of the words of 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.' The Federalist No. 81. The question is whether the plan of the Constitution involves the surrender of immunity [440 U.S. 410, 441]   when the suit is brought against a State, without her consent, by a foreign State." Id., at 322-323 (emphasis added). 5  

Likewise, I think here the Court should have been sensitive to the constitutional plan and avoided a result that destroys the logic of the Framers' careful allocation of responsibility among the state and federal judiciaries, and makes nonsense of the effort embodied in the Eleventh Amendment to preserve the doctrine of sovereign immunity. MR. JUSTICE BLACKMUN'S references to the "right to travel" cases is most telling. In the first such case, Crandall v. Nevada, 6 Wall. 35 (1868), the Court invalidated a Nevada head tax on exit from the State, relying in large part on McCulloch v. Maryland, 4 Wheat. 316 (1819). The essential logic of the opinion is that to admit such power would be to concede to the States the ability to frustrate the exercise of authority delegated to the Federal Government - for example, the power to transport armies and to maintain postal services. There is also the theme that the power to obstruct totally the movements of people is incompatible with the concept of one Nation. The Court admitted that "no express provision of the Constitution" addressed the problem, 6 Wall., at 48; but it concluded that the constitutional framework demanded that the tax be proscribed lest it sap the logic and vitality of the express provisions. 6   [440 U.S. 410, 442]  

The incompatibility of the majority's position in this case with the constitutional plan is even more apparent than that in Crandall. I would venture to say that it is much more apparent than the incompatibility of the one-year residency requirement imposed on Thompson as a precondition to receipt of AFDC benefits. 7 Despite the historical justification of federal courts as neutral forums, now suits against unconsenting States by citizens of different States can only be brought in the courts of other States. That result is achieved because in the effort to "protect" the sovereignty of individual States, state legislators had the lack of foresight to ratify the Eleventh Amendment. The State cannot even remove the action to federal court, because it is not a citizen for purposes of diversity jurisdiction. Moor v. County of Alameda, 411 U.S. 693, 717 (1973); Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487 (1894). Ironically, and I think wrongly, the Court transforms what it described as a constitutional right in Edelman v. Jordan, 415 U.S. 651, 673 (1974), and Great Northern Insurance Co. v. Read, 322 U.S. 47 (1944), into an albatross.

I join my Brother BLACKMUN'S doubts about footnote 24 of the majority opinion. Where will the Court find its principles of "cooperative federalism"? Despite the historical justification of federal courts as neutral forums, despite an understanding shared by the Framers and, for close to 200 years, expounded by some of the most respected Members of this Court, and despite the fact that it is the operative postulate that makes sense of the Eleventh Amendment, the Court concludes that the rule that an unconsenting State is not subject to the jurisdiction of the courts of a different State finds no support "explicit or implicit" in the Constitution. Ante, at 421. If this clear guidance is not enough, I do not see how the Court's suggestion that limits on state-court jurisdiction may be found in principles of "cooperative federalism" can be taken [440 U.S. 410, 443]   seriously. Yet given the ingenuity of our profession, pressure for such limits will inevitably increase. Having shunned the obvious, the Court is truly adrift on uncharted waters; the ultimate balance struck in the name of "cooperative federalism" can be only a series of unsatisfactory bailing operations in fact.

I am also concerned about the practical implications of this decision. The federal system as expressed in the Constitution - with the exception of representation in the House - is built on notions of state parity. No system is truly federal otherwise. This decision cannot help but induce some "Balkanization" in state relationships as States try to isolate assets from foreign judgments and generally reduce their contacts with other jurisdictions. That will work to the detriment of smaller States - like Nevada - who are more dependent on the facilities of a dominant neighbor - in this case, California.

The problem of enforcement of a judgment against a State creates a host of additional difficulties. Assuming Nevada has no seizable assets in California, can the plaintiff obtain enforcement of California's judgment in Nevada courts? Can Nevada refuse to give the California judgment "full faith and credit" because it is against state policy? Can Nevada challenge the seizure of its assets by California in this Court? If not, are the States relegated to the choice between the gamesmanship and tests of strength that characterize international disputes, on the one hand, and the midnight seizure of assets associated with private debt collection on the other?

I think the Framers and our predecessors on this Court expressed the appropriate limits on the doctrine of state sovereign immunity. Since the California judgment under review transgresses those limits, I respectfully dissent.

[ Footnote 1 ] Mr. Chief Justice Marshall captured this idea in McCulloch v. Maryland, 4 Wheat. 316, 407 (1819): "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." This was the preface to the famous line: "In considering this question, then, we must never forget, that it is a constitution we are expounding." Ibid. (Emphasis is original.)

[ Footnote 2 ] 1 J. Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, pp. 143-195 (O. W. Holmes Devise History 1971); C. Jacobs, The Eleventh Amendment and Sovereign Immunity 9 (1972).

[ Footnote 3 ] 3 Elliot's Debates 533 (James Madison): "[Federal-court] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." Id., at 555-556 (John Marshall): "It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant - if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided." Although there were those other than opponents of the Constitution who suggested that Art. III was an abrogation of state sovereign immunity - Edmund Randolph and James Wilson being the most eminent - this Court has consistently taken the views of Madison, Marshall, and Hamilton as capturing the true intent of the Framers. See Edelman v. Jordan, 415 U.S. 651, 660 -662, n. 9 (1974); Monaco v. Mississippi, 292 U.S. 313, 323 -330 (1934); Hans v. Louisiana, 134 U.S. 1, 12 -15 (1890).

[ Footnote 4 ] The adverse reaction to Chisholm was immediate, widespread, and vociferous. 1 Goebel, supra n. 2, at 734-741.

[ Footnote 5 ] These cases do not exhaust the contexts in which this Court has invoked the constitutional plan to find a State was not amenable to an unconsented suit despite the absence of express protection in the Constitution. See, e. g., Ex parte New York, 256 U.S. 490 (1921) (admiralty cases); Smith v. Reeves, 178 U.S. 436 (1900) (suits by federal corporations).

[ Footnote 6 ] The Court appealed to the logic and structure of the constitutional scheme because the case was decided before ratification of the Fourteenth Amendment, and therefore the Court could not avail itself of the flexible analytical "tools" provided by the Equal Protection Clause and the Due Process Clause.

[ Footnote 7 ] Shapiro v. Thompson, 394 U.S. 618 (1969). [440 U.S. 410, 444]  
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